What to do if you are charged with domestic violence in Alberta?

By Matt Deshaye

Domestic violence is the use of physical or sexual force, actual or threatened, in an intimate relationship. It can include a single act of violence or a pattern of abuse that may include:

• physical abuse;
• emotional abuse;
• psychological abuse;
• sexual abuse;
• criminal harassment (stalking); or
• threats to harm children, other family members, pets and property.

The violence is used to intimidate, humiliate or frighten a partner in an intimate relationship or to make them powerless.

Intimate relationships vary in duration and legal formality and include:

• current and former dating relationships;
• current and former common-law relationships;
• current and former married relationships; and
• persons who are the parents of one or more children, regardless of their marital status or whether they have lived together at any time.

Domestic violence is also commonly referred to as domestic abuse, domestic assault, intimate partner abuse or family violence.

What happens after a domestic assault arrest?

If police are called to your residence due to a domestic assault complaint there is a good chance that someone – usually the husband or male partner in a relationship – will be charged with assault. Police then have two options. If you are the one who was arrested, you could be asked to sign an undertaking or other promise to appear document, which gives a future court date. You will also be told you have to move out of the home and not have any contact with the complainant and any other family members until the matter is resolved, either in court or by settlement.

If you are charged with an assault and released on an undertaking or appearance notice, you will be required to submit to fingerprinting. If you do not appear for your fingerprinting date, or fail to appear in court on the assigned date you could be charged with “failing to appear” and a warrant will be issued for your arrest.

The second option after an arrest is that the police can hold you for a bail hearing in front of a judge or a justice of the peace. At this bail hearing, police will indicate if they want you held in custody or released on certain conditions. If it is your first offence and the alleged abuse was relatively minor, police will typically seek a release with conditions. These could include not returning to the family home, avoiding contact with family members involved in the incident, not consuming alcohol or drugs and not possessing firearms.

You must be given a bail hearing within 24 hours of your arrest, which means you may be held in custody overnight awaiting a hearing. According to the provincial government, first-appearance bail hearings occur throughout Alberta from 8 a.m. to midnight, 365 days a year.

Those accused of domestic assault may also face public shaming from friends and colleagues.

What charges can I face after a domestic assault arrest?

The charge laid will depend on the circumstances that led to the complaint and the evidence the police can gather. The most common offence is assault. Generally speaking, assault is any non-consensual contact between two people. It can be direct (such as striking someone with a fist) or indirect (such as throwing something at the person). If an object is used, a person may be charged with assault with a weapon. If injuries result, a person may be charged with assault causing bodily harm or aggravated assault.

Other charges that can be laid after a domestic assault allegation include:

• Unlawful confinement (physically preventing someone from leaving a residence).
• Mischief (intentionally damaging someone’s property).
• Uttering threats (threatening to kill or physically harm a family member).
• Sexual assault (non-consensual physical touching of a sexual nature).
• Criminal harassment (stalking a person by repeatedly following them from place to place or making harassing telephone calls).

Domestic assault is not expressly defined in the Criminal Code. However, it is a mandatory aggravating factor in sentencing if the offender is in a spousal or common-law relationship with the victim at the time of the offence.

What if the complainant asks for the charges to be dropped?

Only the Crown prosecutor can decide whether to drop a charge or proceed in some other fashion. A complainant’s request for the charge to be dropped will be considered but their wishes are not binding. In some cases, they may be making that request under pressure from family members or friends of the accused. Just because your spouse wishes for the charges to be dropped does not mean that he/she won’t be subpoenaed to testify in court.

What if I am falsely accused of domestic violence?

False reports of domestic violence sometimes arise when people, fuelled by emotion, aim to damage their partner’s reputation, especially during heated events such as divorce or custody battles. It is impossible to say how common false allegations are. According to the U.S. National Library of Medicine, “the prevalence of false allegations is between two per cent and 10 cent” for sexual assault allegations.

According to the U.S. Center for Prosecutor Integrity, “eight per cent of Americans report being falsely accused of domestic violence, child abuse, sexual assault or other forms of abuse. The 2,407 survey respondents were representative of the U.S. adult population. The eight per cent figure represents 20.4 million adults.”

In Canada, Statistics Canada notes that in 2017, “seven per cent of all reported Criminal Code violations (excluding traffic offences) were classified as unfounded, meaning that after investigation, police determined that no violation of the Criminal Code or any other federal statute occurred. Over one in 10 incidents of violent crime (12 per cent) were classified as unfounded, while six per cent of property crimes and seven per cent of other Criminal Code violations reported were deemed to be unfounded.”

StatsCan adds that “14 per cent of sexual assaults (levels one, two and three) reported to police were classified as unfounded. Overall, certain violent offences were more likely to be classified as unfounded by police, such as criminal harassment (27 per cent), indecent or harassing communications (23 per cent) and uttering threats (17 per cent). In contrast, a lower proportion of incidents of robbery (five per cent) and extortion (five per cent) were deemed unfounded.”

If you have been falsely accused of domestic assault, a criminal lawyer can examine the evidence the Crown has against you and look for inconsistencies. If those can be found, the credibility of the complainant will be called into question

Contact us for assistance

Our team of criminal lawyers has extensive experience in dealing with domestic violence charges, from bail hearings through to the trial. We will negotiate with Crown prosecutors on your behalf, securing the best outcome possible in your circumstances.

We can also challenge the facts the Crown is presenting. Many domestic violence cases are largely a credibility contest, so reaching a “not guilty” verdict depends heavily on your lawyer’s ability to effectively cross-examine the complainant and find flaws in other evidence.

If you have been accused of domestic violence, contact us for a free consultation.